957 959

Art. 957.
The Legacy or devise shall be without effect:
1. If the testator transforms the thing bequeathed in such a

manner that it does not retain either the form or the
denomination it had;
2. If the testator by any title or for any cause alienates the

thing bequeathed or any part thereof, it being understood
that in the latter case the legacy or devise shall be without
effect only with respect to the part thus alienated. If after
the alienation the thing should again belong to the testator,
even if it be by reason of nullity of the contract, the legacy
or devise shall not thereafter be valid, unless the
reacquisition shall have been effected by virtue of the
exercise of right to repurchase;
Art. 957. The Legacy or devise shall be without effect:
3. If the thing bequeathed is totally lost during

the lifetime of the testator, or after his death
without the heir’s fault. Nevertheless, the
person obliged to pay the legacy or devise
shall be liable for eviction if the thing
bequeathed should not have been
determinate as to its kind, in accordance with
the provisions of Article 928.
**End of Art. 957**

Art. 957 speaks about when a legacy or devise is without effect
(1) Par. 1. – ‘TRANSFORMS’
(a) Form – the external or outward appearance of the thing. (ex. Good all
cloth made into suit)
(b) Denomination – the name usually given to it by the public, according of

course to its essential elements, species or genus.
Example: A school converted into a lodging or apartment house.
(c) Illustration:
A gave B a swimming pool in the former’s will. Later A converted the

swimming pool into a tennis court. Both form and denomination changed.
The disposition has therefore been impliedly revoked, because it “shall be
without effect.”
(d) Par. 1 refers to the legacy or devise of a specific thing. Moreover, the
whole Article presupposes a valid devise or legacy.
(2) Par. 2. – ‘ALIENATES’
(a) When the testator donates or sells the property bequeathed, there is
implied revocation of the disposition. The presumption under the law is that
there has been a change of intention. (6 Manresa 689)
However, in the case of Fernandez, et al vs. Dimagiba, L-23638, Oct. 12, 1967,
the Supreme Court held that if there is no change or departure from the
original intent of the testator, as when for instance there was no consideration
for the transfer, or there was undue influence, it could be that the testator
merely intended to comply in advance (ademption) with what he had ordered
in the testament.
(b) A gave B a legacy of a specific car but A later on promised to give it as a

donation to C provided that C would pass the bar in 2004. If C does not pass,
the legacy remains valid. This is so because the alienation never took effect in
view of the non-fulfillment of the suspensive condition.
(c) The creation of a voluntary easement on a piece of land given as a devise

is a partial alienation, and the devisee naturally receives the land with the
burden of the easement. (6 Manresa 689)
(d) A gave B a legacy to a specific car (a Volvo). A then gave the car to C and
told the latter that if C would marry D, the donee C would have to return the
car. The legacy here was revoked the moment A alienated the car.
Why?
It is true that there was a resolution condition, but then, the alienation
became effective right away because under the law, an obligation with a
resolutory condition is demandable right away.
Suppose later on C marries D, and the car is returned to A, will this revive
the legacy? No. And therefore should A subsequently die, B does not get the
car. Notice that the law states that if after the alienation (which was really
done, in this case), the thing should again belong to the testator, the legacy
(or devise) shall not thereafter be valid.
(e) If the testator reacquires a thing alienated, and the reacquisition is by

virtue of the exercise of the right of repurchase, it is evident that:
1) the alienation had not been absolute;

2) and he really intended to revive the legacy.
(f) A gave B a legacy of a specific car. C was desirous of acquiring the car
and so he fraudulently informed A that B was already dead. Convinced, A
sold the car to C. After a few weeks, A had the contract voided by the courts
on the ground of fraud. After A’s death, two persons claimed the car: B, the
legatee, and X an intestate heir of A. X alleged that under the law, A had
reacquired the car after the alienation by reason of the nullity of contract.
Who should be entitled to the car?
B should get the car. Reason: In view of the fraud committed to him. A had
really no intention of revoking the legacy. The consent of A was therefore
vitiated, i.e., not voluntary (L-23638,Oct. 12, 1967) where the Court held that
“an alienation thru undue influence or through any of the vices of consent,
does not revoke a testamentary disposition for the transfer” does not express
the real intent of the testator.
(h) A gave B a devise of a specific house. A then donated the house

to C in a private instrument. Because under the law such donation is
null and void, A was later on able to get back the house. The devise in
this case shall be without effect. Here, the nullity was not caused by
vitiated consent. (15 Scaevola 263)
(3) Par. 3. – ‘LOST’
(a) A gave B the devise of a particular house. A month later,

the house was totally burned. A week after, the testator died.
Will B get the house?
No, B cannot get anything because the devise shall be without

effect. Even if the house had been burned after A’s death, B
will still not get anything if the loss occurred without any fault
on the part of A’s heirs (like A’s children, for instance).
(b) If the legacy or devise is generic, the heir charged is liable

for eviction. (See. Art. 928)
(3) Par. 3. – ‘LOST’
(c) “LOST” in this paragraph refers to both physical

loss and legal or juridical loss, as in expropriation
proceedings. (6 Manresa 693).
Of course, if later the testator reacquires the

property, the disposition in the will remains valid
because the alienation had not been voluntary. In
such a case however, the property must have been
existing at the time of the testator’s death. (6
Manresa 693).
Art. 958. A mistake as to the name
of the thing bequeathed or
devised, is of no consequence, if it
is possible to identify the thing
which the testator intended to
bequeath or devise.
Art. 958 speaks of the “Effect of
Mistake in the Name of Thing”
Example:
“My only car, a Ford Expedition Limited
2003”can mean “my only car, a Ford
Expedition Limited 2002,” provided that
identification of testator’s intent is possible.
The typographical error in this case would not
matter.
Art. 959. A disposition made in general
terms in favor of the testator’s
relatives shall be understood to be in
favor of those nearest in degree.
(1) Art. 959 speaks of “Disposition in General Terms”
(a) Observe that the law uses the phrase “the testator’s
relatives.”
The relatives must be within the fifth degree, since

persons farther than this are no longer considered
relatives. It is evident that relatives by affinity are
excluded. (15 Scaevola 227).
(b) The nearer the degree excludes the farther. Hence,

those in the 3rd degree for example exclude the farther.
The affections of the testator are naturally for those

nearest to him in degree. (6 Manresa 36)
(c). In this Article, the Right Of Representation does
not exist.
Reason: In this Project of the Civil Code of 1851,

there was a provision similar to Art. 959, and said
provision expressly mentioned the right of
representation. But in the Old Civil Code, the right
of representation in connection with this Article
was eliminated. This elimination can only mean
that in connection with this Article there is no right
of representation. (6 Manresa 36). (Art. 959 in the
New Civil Code is only a reproduction of Art. 751 of
the Old Code.)
(d) There is no preference between lines, hence, a
grandson and a sister are both relatives of the
second degree.
There is indeed no preference because what is

important is the nearness of the degree. (6
Manresa 36)
2. Some Problems under Art. 959
(a) A testator gave all his cash assets to “the relatives of

my wife.”
Can Art. 959 apply to this will?
No, says Scaevola, because the law speaks of the

testator’s relatives. The provision regarding “those
nearest in degree” cannot be applied. (15 Scaevola
227).
(b) A testator gave some of his properties “to all who are
entitled thereto.” (Singson vs. Lim, 47 Phil. 109)
Can Art. 959 apply to this will?
No Art. 959 cannot be applied in this will because the

clause evidently refers to the intestate heirs, and not to
the “testator’s relatives.” Here, those who were left
were the widow, four brothers, and four nieces. The
nieces were the children of a deceased sister. Said
nieces were allowed to inherit together with the
brothers.
Note:
(a) The rules given in the above-cited

comments may of course be varied or
changed by the testator in his will, for after all,
his intent must prevail. (6 Manresa 43).
(b) See comments under Art. 846. Art. 959 is

specifically limited in its application to the
case where the beneficiaries are relatives of
the testator, not those of the legatee. (Belen
vs. BPI, et al., L-14474, Oct. 31, 1960).
**End of Presentation **
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Art. 957.

The Legacy or devise shall be without effect:

1. If the testator transforms the thing bequeathed in such a

2. If the testator by any title or for any cause alienates the

3. If the thing bequeathed is totally lost during

**End of Art. 957**

(b) Denomination – the name usually given to it by the public, according of

Example: A school converted into a lodging or apartment house.

A gave B a swimming pool in the former’s will. Later A converted the

(b) A gave B a legacy of a specific car but A later on promised to give it as a

(c) The creation of a voluntary easement on a piece of land given as a devise

(e) If the testator reacquires a thing alienated, and the reacquisition is by

1) the alienation had not been absolute;

(h) A gave B a devise of a specific house. A then donated the house

(a) A gave B the devise of a particular house. A month later,

Will B get the house?

No, B cannot get anything because the devise shall be without

(b) If the legacy or devise is generic, the heir charged is liable

(c) “LOST” in this paragraph refers to both physical

Of course, if later the testator reacquires the

The relatives must be within the fifth degree, since

(b) The nearer the degree excludes the farther. Hence,

The affections of the testator are naturally for those

Reason: In this Project of the Civil Code of 1851,

There is indeed no preference because what is

(a) A testator gave all his cash assets to “the relatives of

Can Art. 959 apply to this will?

No, says Scaevola, because the law speaks of the

Can Art. 959 apply to this will?

No Art. 959 cannot be applied in this will because the

(a) The rules given in the above-cited

(b) See comments under Art. 846. Art. 959 is

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End of Art. 957